Historical Foundations of the Moroccanity of the Sahara
If it is topical to view the Sahara problem under the scope of self determination for the population, one must keep in mind that this territory belongs since immemorial times to Morocco and that its integration to the mother-country in 1975 was legitimate. Indeed, Morocco emphatically proposes the holding of a referendum for the self-determination of the Saharan population, but the holding of a referendum does not mean in any way that Morocco lays a claim to its historical rights and legal titles. This position must be apprehended as a Moroccan attachment which has never been denied, to the principles governing the friendly relationship between States, for upholding international peace and security and the peaceful settlement of disputes.
The present document aims to recall briefly the different titles which prove the Moroccan nature of the Sahara. The symbiosis which characterizes the relations between the Saharan provinces and the remainder of the country, the prodigious socio-economic achievements made since 1975 attest the belonging of the Sahara to Morocco .
1- HISTORICAL FOUNDATIONS OF THE MOROCCANITY OF THE SAHARA
These foundations rest on numerous acts on internal and international levels.
1- Internal level.
First, there is a major fact worth mentioning: Morocco exists as a State since the 9th century (1). This genuine Statesmanship is unique in the Maghreb. It had been preserved even during the Protectorate (1912-1956).
Within the mechanism of functioning of the secular Moroccan State, the Sahara has always held a privileged and often decisive position. Thus, the founders of the different dynasties in Morocco were often members of one of the tribes of the Western Sahara. This was the case for the Almoravides, whose founder Youssef Ben Tachfine (9th century), was later to create the “Greater Morocco” which extended to the frontiers of the Senegal. Those close ties with the Sahara had not been interrupted with the advent of the Alaouite dynasty (17th century), that came from the Tafilalet (Sahara) and which never stopped consolidating the national unity and strengthening the immemorial ties between all the parts of Morocco (2).
The exercise of Sovereignty by the Moroccan State during its history which is characterized by a number of peculiarities due to the particular structure of the State. This peculiarity has been recognized by the International Court of Justice (Advisory Opinion; 16/10/75). The central power is exerted by the Sultan, “Commander of the Believers”. In this position, he is the religious leader of the community of believers whom he also governs temporally. The acceptation of the Sultan’s person by the believers is made through the “Beyaa”, or allegiance. The obedience which, translated into inter-temporal terms, emanates from the traditional efforts binding a State to its nationals so long as the Sultan remains faithful to the precepts of the Coran. The Sultan, representative of the supreme spiritual and political authority, is in charge of, among others, the protection of the population and the relationship with foreign powers. Therefore, the allegiance act is synonymous with sovereignty. Besides, this has been confirmed by Judge Ammoun in his opinion relating to the judgment of the ICJ on the Sahara.
Therefore, allegiance to the Sultan or Sovereign was tantamount to allegiance to the State. It is to recognize consequently, that the legal ties between Morocco and the Western Sahara, which are recognized by the Court, translate into political ties, and even ties of Sovereignty (3).
As for the Sahara, the exercise of this sovereignty appears at several levels, such as the appointment of local officials (governors, judges and military officers), and the definition of the missions which were assigned to them.
While the International Court of Justice was looking into the file of the Western tern Sahara, Morocco produced several dozens of texts and documents of internal character that certify an effective, permanent, continuous and peaceful exercise of sovereignty by the Sultan over the Saharan territories (4).
If one examines the period preceding colonial occupation, one can cite several instances dealing with the appointment of local officials by the central authority (Cf. Annex n° I) (5). Furthermore, these officials were instructed to preserve the territorial integrity of Morocco (Cf. Annex n° 2) (6).
In this respect, one must recall the privileged place held by Cheikh Ma el Ainain (c. the end of the 19th century) in the resistance against foreign encroachments in the Western Sahara. He was the Sultan’s special representative, whose policy he conducted on the local level (Cf. Annex n° 3) (7).
The central power, anxious to consolidate its authority over the southern provinces, had to intervene in situ in the person of the Sultan himself. Thus, mentioning only the latest, Hassan I had carried out two expeditions in 1886 in order to put an end to foreign incursions in this territory and to officially invest several caids and Cadis. One may also mention the levy of taxes as a further instance of the exercise of sovereignty (8).{mospagebreak}2- International level.
The Moroccan sovereignty over the Western Sahara has been consecrated by express provisions of several treaties between the Cherifian empire and foreign States. The analyses of these diplomatic conventions demonstrates that the foreign powers have permanently resorted to the Sultan to protect the activities of their nationals in the Western Sahara. For this purpose, treaties were signed respectively with Spain in 1861, the Unites States of America in 1786 and 1836 and with Great Britain in 1856 (9).
Other instruments expressly recognize Moroccan sovereignty over the Western Sahara. This is particularly the case of the Anglo-moroccan Treaty of March 13, 1895, the first Article of which provided that: “…no power can lay claims to the lands that are between Wad Draa and Cape Bojador and which are called Tarfaya above named and all the lands behind it, because all this belongs to the territory of Morocco” (10).
Besides, Moroccan sovereignty over Rio de Oro was internationally recognised , as the French ambassador in Tangiers demonstrates it in his letter of` November 10, 1898. According to that letter exchange,
“The Spanish newspapers are making a lot of fuss about news that have recently originated in Rio de Oro, purporting that a great number of Moroccans -from four to five thousand- are aggressively approaching the mentioned factory”(Cf. Annex n° 5).
The International Court of Justice examined all these documents and did not fail to note that the elements and information brought to the knowledge of the Court show the existence, at the time of the Spanish colonization, of legal ties of allegiance between the Sultan of Morocco and certain tribes living in the territory of the Western Sahara; (§162 of the 1975 Advisory opinion).
These historical foundations warrant a better understanding of the legal bases underlying the completion of the territorial integrity achieved in 1975.
II- LEGAL BASES OF THE COMPLETION OF THE TERRITORIAL INTEGRITY
Under the joint declaration of April 7, 1956, Spain had to put an end to its presence in the northern part of the Kingdom. This declaration, in particular its paragraph 2, provided that Spain “reaffirms her willingness to respect the territorial unity of the Empire guaranteed by the international treaties”.In fact, the Spanish colonization was to continue in several parts of the Moroccan territory that were later ceded through stages: Tarfaya (1958), Ifni (1969) and Western Sahara (Sebta and Melilia) are still the object of a Moroccan-Spanish territorial dispute.
Regarding the Sahara, Morocco’s claims for retrieval date back to 1956. Among other manifestation of Morocco’s determination to get back its southern provinces, the historical speech of the Late King, His Majesty Mohammed V at El Ghizlan in 1958 is worth mentioning. Addressing Moroccans from the Sahara, He reminded them of the everlasting allegiance their ancestors had vowed to Moulay Hassan I and promised them a permanent and total mobilisation of Morocco, until the recovery of the whole Sahara. (Cf. Annex n° 6).
Following the same trend, and ever since His enthronement, His Majesty King Hassan II reaffirmed this stance, when He declared, at the first Non-aligned Summit (Belgrade, September 1961): “…This assail on the territorial integrity of independent countries, members of the United Nations, creates a climate of irritation and provocation and constitutes, on the part of the colonialist countries, a permanent threat against security and peace. In Morocco, for instance, Spain still occupies whole areas in the southern part of our territory: Saquia El Hamra, Ifni and Rio de Oro…”.
When it adhered to the Chart of the OAU in 1963, Morocco reaffirmed its stance, entering reservations as follows: “Regarding the achievement of Morocco’s Sovereignty and territorial integrity in its authentic frontiers, it is important that it be known that the signature of the Chart of the OAU should not, in any case, be inter interpreted as an explicit or implicit recognition of the “faits accomplis”, so far rejected by Morocco as such, nor as a foregoing of the pursuance of our rights through the legitimate means at our disposal”.
In this affair, Morocco has always sought, through peaceful means, to reach a settlement by requesting Spain to start appropriate negotiations and by referring the case to different international organization. In its response, the United Nations General Assembly, in the resolution 2072 (XX) of December 16, 1965, called on Spain in her capacity as administrating power to take immediate and necessary measures for the liberation from the colonial dominion of the territories of Sidi Ifni and Western Sahara and to start negotiations on problems relating to the Sovereignty of these two territories”. The United Nations General Assembly had thus established a link between two questions concerning the territorial integrity of Morocco.
The dilatory maneuvers of Spain had led the UN General Assembly to ask, upon Morocco’s request, for an advisory opinion of the International Court of Justice (resolutions 3292 (XXIX) of December 13, 1974) relating to the legal situation of`the territory on the eve of the Spanish colonization, and in particular its legal ties with Morocco and Mauritania.
The questions were the following:
“1- Was the Western Sahara (Rio de Oro and Saquiat El Hamra) at the time of colonization by Spain a territory belonging to no one (Terra Nullius)?
If the answer to the first question is in the negative,
2- What were the legal ties between this territory and the Kingdom of Morocco and the Mauritanian entity?”
Answering the first question in the negative, the ICJ recognized, as stated before, ties of allegiance between the Sultan of Morocco and the tribes of the Western tern Sahara. This attested the lawfulness of the Moroccan legal theses and made it mandatory to start negotiations with Spain to put an end to the colonial situation of this territory.
It is in this spirit that the Security Council had to recall, under its resolutions 377 of October 22, 1975? that “the concerned and interested parties” were able to start negotiations to peacefully settle the litigation on the basis of article 33 of the United Nations Charter. The concerned parties are Spain, Mauritania and Morocco. The interested party being Algeria in her capacity as a neighboring country. It is worth noting that the “Polisario” was mentioned neither in the UN Resolutions nor in the official statements of the Algerian authorities. In fact, Algeria pretended having no direct claim on the Western Sahara. Even more, president Boumedienne let it be known that he encouraged and approved the partition of the territory bet between Morocco and Mauritania. Indeed, in October 1974, during the summit of the League of Arab States, he told Arab Heads of State that “the problem concerns only Mauritania and Morocco. I say that I agree and that there is no problem…”. Several meetings were held in Nouadhibou, Rabat and Agadir after the Morocco-algerian accord.
“I have attended a meeting between His Majesty the King and the Mauritanian president during which they agreed to find out a formula to settle this problem after the liberation, a formula which provides for the part to be retrieved by Mauritanian and the part to be ceded to Morocco. I was then present and I heartily agreed without reservation”. (Archives of the League of the Arab States. Cf. in this sense “LE MONDE”, April 9, 1980).
Spain, though, maintained its colonial policy, causing Morocco to organize the Green March, which paved the way for the Madrid Agreement, signed by Spain, Morocco and Mauritania and laying down modalities of retroceding this territory (Cf. Annex n° 7: Madrid Agreement, November 14, 1975).{mospagebreak}One must underline that this agreement is in total conformity with provisions of international law and the United Nations Charter (Cf. Article 5 of the Agreement). The General Assembly recognized indeed the validity of this Treaty, since it took notice of the trilateral Agreement concluded between the Spanish, Moroccan and Mauritanian Governments, the text of which has been transmitted to the Secretary General of the UN in November 18, 1975″. (Resolution 3458 (XXX) B. 10/12/1975).
All the provisions of the Madrid Agreement have been scrupulously respected by Morocco, particularly those relating to the expression of the will of the population . (Article 3 of the Madrid Agreement) (11).
In fact, the Jemaa (Assembly), a body whose representativity and competence in managing the affairs of the population, had been recognized by the United Nations Mission which visited the territory in 1975 (UN Document, A/10023/Add. 5, pp. 41 and following) had approved the provisions of the Agreement. This way of consulting the population is in conformity with international law and international practice in the matter of decolonization.
Consequently, self-determination may, according to the provisions of inter national law, take on several forms. This has been amply underlined during the pro proceedings of the International Court of Justice while it examined the Sahara affair.
Therefore, the retrocession of the Sahara to Morocco is in conformity with the historical and legal titles of Morocco and satisfies international legality through its respect of the UN Resolutions, the Madrid Agreement and the population’s wishes. The more so as the reintegration of the Sahara to the mother-country started an unprecedented development of this part of the Kingdom.
(1)- Cf. Robert REZETTE: Le Sahara Occidental et les Frontières marocaines”. Nel, Paris 1975 p. Il.
(2)- In this respect, the meaningful statement of Moulay Hassan I can be recalled: “I take the oath not to pay a piastre as compensation . Spain can set my ports on fire, occupy the capital, ransack the country: I would take refuge in the Atlas rather than compromise. My ancestor came from the Sahara. I will go back there”, (Document n° 15, dated May 14th, 1876, French Legation in Morocco) mentioning only the pre-protectorate period.
(3)- ICJ, Reports 1975, p. 83. For more details, Cf. pp. 83-102. Cf. also individual opinion of Judge M. FORSTER. Idem p. 103 and Annex n° 7.
(4)- ICJ, Western Sahara Pleadings, Arguments, Documents, Volume 111, Written Statements and Documents, pp. 205 to 497.
(5)- Nomination Dahirs, dating back to the reign of His Majesty Moulay Abdelaziz Bel Hassan, (Two Dahirs in 1886 and two in 1899), of His Majesty Abdelhafid Bel Hassan (1907 and 1909).
(6)- Dahirs of His Majesty El Hassan Ben Mohammed (1877 and 1886) of His Majesty Abdelaziz Ben El H~Hassan (1901)
(7)- Two letters by Ma El Ainain (1903 and 1908)
(8)- Cf. separate opinion of Vice-President Ammoun, ICJ, Reports of Judgments, Advisory opinions and Orders, Western Sahara Advisory Opinion of 16 October 1975, p. 83
(9)- The treaties are the following: – Trading Treaty between Morocco and Spain in Madrid in November 20, 1861. – Treaty with the USA in June 23 to 28,1786. – Treaty of peace and friendship between the USA and Morocco, signed in Meknes in September 16,1856. – Anglo-maroccan Accords, December 9,1856.
(10)- “If this government buy the buildings in the place above-named, from the named company, no one will have any claim to the lands that are between Wad Draa and Cape Bojador, and which are called Tarfaya, above named and all the lands behind it, because all this belongs to the territory of Morocco. (Cf. Annex 4)
(Il)- “The opinion of the Saharan population, expressed through the Jemaa will be respected”.